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Bob Buckley: Abortion policy turns on more than one election

The Examiner

President Trump and Senate Majority Leader Mitch McConnell have promised a speedy appointment and approval of the new Supreme Court nominee, Amy Coney Barrett. The Republicans have enough votes to push the appointment through, maybe even before the election.

If everyone thinks Roe v. Wade will be overturned very quickly, they should realize that this is a long-term process.

Bob Buckley

Roe v. Wade began in June 1969 when Norma McCorvey discovered she was pregnant. She lived in Texas, where abortions were illegal. She went ahead and delivered the baby and put it up for adoption. She then filed suit in federal court in the Northern District of Texas in 1970 and in June of that year, a three-judge panel ruled that the Texas law was unconstitutional. The case was then appealed to Supreme Court. The case was decided in January 1973. Thus, it took almost four years for the case to be resolved.

The first step going forward will be for a state legislature to pass a law declaring abortion to be illegal. That could happen very quickly as there are several states that could quickly pass such a law, including Missouri.

The next step would be for a pregnant woman to seek an abortion, be stopped by the new law, and she would then file suit. There would likely be a trial in federal District Court and then an appeal to the Circuit Court of Appeals for that jurisdiction. This could take some time as well. It would then be appealed to the Supreme Court, which is a slow process also. It would be difficult to accomplish this before the next president is elected in 2024. Much can happen during that time.

One thing that could happen is that the Supreme Court could be expanded by legislation to 11 or 13 justices. For this to occur, the Democrats would have to gain control of the Senate and retain control of the House of Representatives. The filibuster rule requiring 60 votes to stop debate on appointment of Supreme Court justices was eliminated by McConnell with adoption of the “nuclear option” during the Trump presidency, which led to the appointment of Neil Gorsuch and Brett Kavanaugh. Under the old rules, they would not have been approved because of the filibuster rule.

The Democrats had eliminated the filibuster rule on lower federal judicial appointments in 2013 and McConnell told them at the time that they had made a huge mistake, which led to blocking of Merrick Garland’s appointment to the Supreme Court by President Obama under the “nuclear option.” Thus, if Joe Biden is President and the Democrats control the Senate, two or perhaps four justices would be appointed to join those already on the court.

In the last abortion restriction case before the Supreme Court earlier this year, the court was considering a Louisiana law that required doctors performing abortions to hold “active admitting privileges at a hospital ... located not further than thirty miles from the location at which the abortion is performed.” The Supreme Court had earlier considered a Texas law that was almost identical and had stuck it down, but there was hope that the Louisiana law would be declared constitutional because Trump had appointed Neil Gorsuch and Brett Kavanaugh to the court and there were now five conservatives on the court.

There was good reason to hope that this restriction would be upheld despite the Texas ruling to the contrary because Chief Justice Roberts had authored a dissenting opinion in the Texas case in favor of declaring the law constitutional. Thus, the fervent hope was that Kavanaugh, Gorsuch, Samuel Alito and Clarence Thomas would join Roberts in upholding the Louisiana law. It was a reasonable expectation, except the chief justice threw them a curve. The legal principle of “stare decisis” was more important than repeating his position on the Texas law.

Stare decisis is Latin for “to stand by things decided” It is an established rule to abide by former precedents when the same points come again in litigation but it also keeps the “scale of justice even and steady, and not liable to waver with every new judge’s opinion.”

The chief justice stated: “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents.” He stated that “stare decisis instructs us to treat like cases alike.” Roberts even said that he thought the law was constitutional as he stated in the Texas case, but “stare decisis” required him to vote as he did.

Thus, although there will now be six conservative justices on the Supreme Court, it will be interesting to see how the others, including Roberts, view Roe v. Wade under the judicial lens of “stare decisis.” Roe was decided in 1973 and has been the law of the land for 47 years. Will the six justices stand firm because of this well-established legal doctrine, or will the Democrats have the opportunity of expanding the court to make sure that Roe stands and reinstate other legal precedents dismantled by the conservatives in the past four years such as the Voting Rights Act.

Let the jockeying begin. One thing is certain. The hotly contested issue of freedom of choice vs. right to life will continue into the next presidential term.

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com.